Philosophy of law
The philosophy of law is commonly known as jurisprudence. Normative jurisprudence asks "what should law be?", while analytic jurisprudence asks "what is law?"Analytical jurisprudence
There have been several attempts to produce "a universally acceptable definition of law". In 1972, Baron Hampstead suggested that no such definition could be produced.Connection to morality and justice
History
Legal systems
Civil law
Anarchist law
Anarchism has been practiced in society in much of the world. MassSocialist law
Socialist law is the legal systems inCommon law and equity
Religious law
Religious law is explicitly based on religious precepts. Examples include the JewishCanon law
Canon law (from Greek language, Greek ''kanon'', a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical jurisdiction, ecclesiastical authority (Church leadership), for the government of a Christian organisation or church and its members. It is the internal ecclesiastical law governing the Catholic Church (both the Latin Church and the Eastern Catholic Churches), the Eastern Orthodox Church, Eastern Orthodox and Oriental Orthodoxy, Oriental Orthodox churches, and the individual national churches within the Anglican Communion. The way that such church law is legislative power, legislated, interpreted and at times court, adjudicated varies widely among these three bodies of churches. In all three traditions, a Canon (canon law), canon was originally a rule adopted by a church council; these canons formed the foundation of canon law. The Catholic Church has the oldest continuously functioning legal system in the western world, predating the evolution of modern European civil law and common law systems. The 1983 Code of Canon Law governs the Latin Church ''sui juris''. The Eastern Catholic Churches, which developed different disciplines and practices, are governed by the ''Code of Canons of the Eastern Churches''. The canon law of the Catholic Church influenced theSharia law
Legal methods
There are distinguished methods of legal reasoning (applying the law) and methods of interpreting (construing) the law. The former are legal syllogism, which holds sway in civil law legal systems, analogy, which is present in common law legal systems, especially in the US, and argumentative theories that occur in both systems. The latter are different rules (directives) of legal interpretation such as directives of linguistic interpretation, teleological interpretation or systemic interpretation as well as more specific rules, for instance, golden rule or mischief rule. There are also many other arguments and cannons of interpretation which altogether make statutory interpretation possible. Law professor and former United States Attorney General Edward H. Levi noted that the "basic pattern of legal reasoning is reasoning by example"—that is, reasoning by comparing outcomes in cases resolving similar legal questions. In a U.S. Supreme Court case regarding procedural efforts taken by a debt collection company to avoid errors, Justice Sonia Sotomayor, Sotomayor cautioned that "legal reasoning is not a mechanical or strictly linear process". Jurimetrics is the formal application of quantitative methods, especially Probability theory, probability and statistics, to legal questions. The use of statistical methods in court cases and law review articles has grown massively in importance in the last few decades.Legal institutions
The main institutions of law in industrialised countries are independent courts, representative parliaments, an accountable executive, the military and police, bureaucracy, bureaucratic organisation, the legal profession and civil society itself. John Locke, in his ''Two Treatises of Government'', and Charles de Secondat, Baron de Montesquieu, Baron de Montesquieu in ''The Spirit of the Laws'', advocated for a separation of powers between the political, legislature and executive bodies. Their principle was that no person should be able to usurp all powers of the State (polity), state, in contrast to the Absolute monarchy, absolutist theory of Thomas Hobbes' ''Leviathan (Hobbes book), Leviathan''.Thomas Hobbes, ''Leviathan''Judiciary
A judiciary is a number of judges mediating disputes to determine outcome. Most countries have systems of appeal courts, with an Supreme court, apex court as the ultimate judicial authority. In the United States, this authority is the Supreme Court of the United States, Supreme Court; in Australia, the High Court of Australia, High Court; in the UK, the Supreme Court of the United Kingdom, Supreme Court; in Germany, the ''Bundesverfassungsgericht''; and in France, the ''Cour de cassation (France), Cour de Cassation''. For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant. The European Court of Human Rights in Strasbourg allows citizens of the Council of Europe member states to bring cases relating to human rights issues before it. Some countries allow their highest judicial authority to overrule legislation they determine to be constitutionality, unconstitutional. For example, in ''Brown v. Board of Education'', the United States Supreme Court nullified many state statutes that had established Racial segregation in the United States, racially segregated schools, finding such statutes to be incompatible with the Fourteenth Amendment to the United States Constitution, Fourteenth Amendment to the United States Constitution. A judiciary is theoretically bound by the constitution, just as all other government bodies are. In most countries judges may only interpretivism (legal), interpret the constitution and all other laws. But in common law countries, where matters are not constitutional, the judiciary may also create law under the doctrine of precedent. The UK, Finland and New Zealand assert the ideal of parliamentary sovereignty, whereby the unelected judiciary may not overturn law passed by a democratic legislature. InLegislature
Executive
Military and police
Bureaucracy
The real spirit of the laws in France is that bureaucracy of which the late Monsieur de Gournay used to complain so greatly; here the offices, clerks, secretaries, inspectors and ''intendants'' are not appointed to benefit the public interest, indeed the public interest appears to have been established so that offices might exist.Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by Maximization (economics), profit. In fact private companies, especially large ones, also have bureaucracies.Kettl, ''Public Bureaucracies'', 367 Negative perceptions of "red tape" aside, public services such as schooling, health care, policing or public transport are considered a crucial state function making public bureaucratic action the locus of government power. Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support.Weber, ''Economy and Society'', I, 393 Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission, the scope of work is bound by rules, and management is composed of career experts who manage top down, communicating through writing and binding public servants' discretion with rules.
Legal profession
Civil society
Areas of law
All legal systems deal with the same basic issues, but jurisdictions categorise and identify their legal topics in different ways. A common distinction is that between "International law
Constitutional and administrative law
The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole ... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.The fundamental constitutional principle, inspired by Two Treatises of Government, John Locke, holds that Everything which is not forbidden is allowed, the individual can do anything except that which is forbidden by law, and the state may do nothing except that which is authorised by law. Administrative law is the chief method for people to hold state bodies to account. People can sue an agency, local council, public service, or government ministry for judicial review of actions or decisions, to ensure that they comply with the law, and that the government entity observed required procedure. The first specialist administrative court was the ''Council of State (France), Conseil d'État'' set up in 1799, as Napoleon I of France, Napoleon assumed power in France.Auby, ''Administrative Law in France'', 75 A subdiscipline of constitutional law is election law. It deals with rules governing elections. These rules enable the translation of the will of the people into functioning Democracy, democracies. Election law addresses issues who is entitled to Voting, vote, voter registration, ballot access, campaign finance and Political party funding, party funding, Redistribution (election), redistricting, Apportionment (politics), apportionment, electronic voting and Voting machine, voting machines, accessibility of elections, Electoral system, election systems and formulas, vote counting, election disputes, Referendum, referendums, and issues such as electoral fraud and Election silence, electoral silence.
Criminal law
Criminal law, also known as penal law, pertains to crimes and punishment. It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact but, in itself, makes no moral judgment on an offender nor imposes restrictions on society that physically prevent people from committing a crime in the first place.Brody, Acker and Logan, ''Criminal Law'', 2; Wilson, ''Criminal Law'', 2 Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure.Dennis J. Baker, Glanville Williams ''Textbook of Criminal Law'' (London: 2012), 2 The paradigm case of a crime lies in the proof, Legal burden of proof, beyond reasonable doubt, that a person is guilty of two things. First, the accused must commit an act which is deemed by society to be criminal, or ''actus reus'' (guilty act). Second, the accused must have the requisite intention (criminal law), malicious intent to do a criminal act, or ''mens rea'' (guilty mind). However, for so called "Strict liability (criminal), strict liability" crimes, an ''actus reus'' is enough. Criminal systems of the civil law tradition distinguish between intention in the broad sense (''dolus directus'' and ''dolus eventualis''), and negligence. Negligence does not carry criminal responsibility unless a particular crime provides for its punishment.Contract law
Torts and delicts
The liability for negligence [...] is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. [...] The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and theThis became the basis for the four principles of negligence, namely that (1) Stevenson owed Donoghue a duty of care to provide safe drinks; (2) he Breach of duty in English law, breached his duty of care; (3) the harm would not have occurred Causation (law), but for his breach; and (4) his act was the proximate cause of her harm. Another example of tort might be a neighbour making excessively loud noises with machinery on his property.''Sturges v Bridgman'' (1879) 11 Ch D 852 Under a nuisance claim the noise could be stopped. Torts can also involve intentional acts such as Assault (tort), assault, Battery (tort), battery or trespass. A better known tort is slander and libel, defamation, which occurs, for example, when a newspaper makes unsupportable allegations that damage a politician's reputation. More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes, when statute does not provide immunity.lawyer A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solic ...'s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
Property law
Equity and trusts
Further disciplines
Law spreads far beyond the core subjects into virtually every area of life. Three categories are presented for convenience, although the subjects intertwine and overlap. ; Law and societyIntersection with other fields
Economics
In the 18th century, Adam Smith presented a philosophical foundation for explaining the relationship between law and economics. The discipline arose partly out of a critique of trade unions and U.S. antitrust law. The most influential proponents, such as Richard Posner and Oliver E. Williamson, Oliver Williamson and the so-called Chicago school (economics), Chicago School of economists and lawyers including Milton Friedman and Gary Becker, are generally advocates of deregulation and privatisation, and are hostile to state regulation or what they see as restrictions on the operation of free markets.Sociology
Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, philosophy of law, social theory and more specialised subjects such as criminology.Cotterrell, ''Sociology of Law'', Jary, ''Collins Dictionary of Sociology'', 636 The institutions of social construction, social norms, dispute processing and legal culture are key areas for inquiry in this knowledge field. Sociology of law is sometimes seen as a sub-discipline of sociology, but its ties to the academic discipline of law are equally strong, and it is best seen as a transdisciplinary and multidisciplinary study focused on the theorisation and empirical study of legal practices and experiences as social phenomena. In the United States the field is usually called law and society studies; in Europe it is more often referred to as socio-legal studies. At first, jurists and legal philosophers were suspicious of sociology of law. Kelsen attacked one of its founders, Eugen Ehrlich, who sought to make clear the differences and connections between positive law, which lawyers learn and apply, and other forms of 'law' or social norms that regulate everyday life, generally preventing conflicts from reaching barristers and courts. Contemporary research in sociology of law is much concerned with the way that law is developing outside discrete state jurisdictions, being produced through social interaction in many different kinds of social arenas, and acquiring a diversity of sources of (often competing or conflicting) authority in communal networks existing sometimes within nation states but increasingly also transnationally.See also
* By-law * Law dictionary * Legal research in the United States * Legal treatise * Legislation *References
Citations
Sources
; Printed sources * * * * * See original text iExternal links